Heinz Aemisegger/André Jomini, Der Föderalismus in der Rechtsprechung des Bundesgerichts, in: Bernhard Waldmann (Hrsg.), 1. Nationale Föderalismuskonferenz, Publikationen des Instituts für Föderalismus Freiburg Schweiz, Freiburg 2005, pp. 173 – 192 (French: pp. 193 – 212)
Aemisegger/Jomini – Föderalismus in der Rechtsprechung
Background
Swiss legal culture is characterized by federalism. Cantons are of great political importance and central to the polity. Accordingly, this factor ever since the beginnings has influenced the Federal Supreme Court’s views on the status and position of Cantons in constitutional law (see Part I A. 4). The text below concerns Federal Supreme Court rulings relevant to federalism. The authors both worked at the Federal Supreme Court, Heinz Aemisegger as federal judge and André Jomini as legal secretary (opinion editor) and research assistant. Today, he is a cantonal appeals court justice. Citing examples from their legal practice they present a typology of cases the Federal Supreme Court had to hear in conflicts between the Confederation and the cantons or between cantons. They describe matters of procedural importance in assessing the scope of cantonal law. This discussion reveals how the Swiss brand of federalism is reflected in the country’s judicial practice.
Summary
The authors make the introductory point that the concept of federalism can be understood in different ways. While in some countries it is seen as a special kind of centralism, in others federalism is taken to imply extensive autonomy on the part of its constituent states. Federalism is universally understood however as meaning different states joining together to form a federation. A federation or federal nation is characterized by guarantees of the existence of its constituent states in federacy and a regulated division of powers between the federal level and the level of the constituent states. The states enjoy a certain degree of autonomy and participate in the decision-making of the federal nation. The constitutional principles of a state member to a federation thus define the nature of federalism existing in a country. The Swiss judicial system is characterized by the basic elements of the rule of law, democracy and the social welfare state, but also by federalism. The administration of justice is an important part of Swiss federalism. The Federal Supreme Court is obliged to take cantonal interests into account in its decisions, but only to the extent required by the constitution. For example, the Federal Supreme Court cannot refuse to apply a federal law on grounds that it violates cantonal sovereignty, which is guaranteed by the federal constitution, because the Federal Supreme Court is bound by federal laws. The subordination of cantonal competences for reasons of efficiency, legal clarity and legal certainty in the interest of legal standardization generally leads to a certain degree of centralization of judicial powers with the Federal Supreme Court. Such centralization ensures correct and uniform application of federal law by the cantonal and municipal authorities applying the law. It also guarantees protection of the constitutional and fundamental rights of individuals seeking justice. In this context, the Federal Supreme Court recognized various unwritten constitutional rights which were incorporated into the new Federal Constitution of 1999, such as the fundamental right to personal freedom, the guarantee of property, the principle of municipal autonomy and the right to emergency assistance. The cantons and municipalities had to adapt their legislation accordingly. The following traits of the judicial system embody Swiss federalism: The Federal Supreme Court generally functions only in case of obvious inaccuracies as a corrective for clarifications of the facts of cases, the application of cantonal law, the exercise of discretion by the competent authorities and the assessment of local particularities known better to the cantons. The cantonal constitutions guaranteed by the Federal Assembly (Federal Parliament) are only reviewed by the Federal Supreme Court for conformity with federal law if the laws in question were not yet in force at the time of the approval pronounced by the Federal Assembly. This does not apply however respecting the ECHR and UN Covenant II, which always have precedence. When the Federal Supreme Court reviews a cantonal act contested as such for lacking conformity with the Federal Constitution, it will only strike down the act or individual provisions if they cannot in any way be interpreted so as to be in conformity with the Constitution. As examples of Federal Supreme Court rulings relevant to the federalist system, the authors cite federal court decisions on the following matters: (1) The principle of loyalty to the Confederation (mutual consideration and assistance, administrative and legal assistance), the guarantee of the continued existence and territorial integrity of the cantons (e.g. disputes between cantons over cantonal border drawing, political initiatives to alter cantonal territory); (2) resolution of conflicts of jurisdiction between federal authorities and cantonal authorities (e.g. competence to regulate the civil law consequences of marriage); (3) resolution of conflicts of competence between the cantons (tax liability of persons who work in one canton and live in another); (4) cantonal organizational sovereignty regarding the exercising of political rights and the limits thereof (e.g. regulation of women’s voting and election rights in cantonal matters, organization of constituencies); (5) cantonal organizational sovereignty regarding procedural law.